The Law and Litigation

By Keith Swift, PhD
InterNACHI member/InterNACHI Report Writing Consultant
President, Porter Valley Software

Mother Teresa dedicated her life to serving the poor, and will likely be canonized a saint. In the last few years of her life, she and the nuns of the Missionary Sisters of Charity set about trying to establish a shelter for the homeless, in the South Bronx. And when the nuns came across a Madonna in the rubble of a burned out three-story building, they believed that providence had ordained the site. In the spirit of charity, Mayor Ed Koch sold them the building for one dollar and, with $500,000.00 provided by the religious order, the future suddenly looked brighter for the homeless. But, it was not to be. After months of bureaucratic drudgery and with the plans approved and work underway, the nuns were told that regulatory law dictated the installation of an elevator. They protested the unnecessary expense, explained that their religious order forbad the use of all mechanical contrivances, and reasoned that the money would be better spent on food and services for the poor, but the law was intractable, and that was the end of it. All work stopped, and the homeless shelter never came into existence. The nuns sent a letter to the bureaucrats, thanking them for the education in the mysteries of the law, and looked for other ways to continue their charitable work. If this case had not been documented in Philip K. Howard’s The Death of Common Sense (Warner Books), I would not have believed that such madness and mindless stupidity was possible. But, as Howard has carefully documented: “modern law has not protected us from stupidity and caprice, but has made stupidity and caprice dominant features of our society” (p.185). Don’t think for one moment that is an isolated case. It is not. McDonalds and other fast food chains now have to warn consumers that the coffee in their cups is hot, yes, the coffee is hot, New Jersey filed a lawsuit against Nissan North America alleging that the company failed to warn consumers that the expensive xenon headlamps on the 2002 and 2003 Maximas were a favorite target of thieves, and under a finders-keepers law in Florida, a thief found himself entitled to money found in the trunk of a car that he had stolen. Another thief found himself generously compensated for injuries that he sustained when he fell through the skylight of a building that he was breaking into.

All this may seem remote from our lives as inspectors, but it is not. Just because you haven’t become one of the law’s hapless victims yet, merely increases the statistical probability that you will. As I have reported elsewhere, most of us are liable for the properties that we inspect for as long as four years, and while real estate agents have an ethical (if not legal) responsibility to pass on our reports to every Tom, Dick, and Harry that demonstrates an interest in the property, these same people have the legal right to sue us, whether they paid for our services or not. This flies in the face of common sense, but it’s the way things are. An inspector in California was sued over a pool that was not in existence at the time of his inspection, another was sued by someone stupid enough to dive from the top of a water slide into the shallow end of a pool, and yet another was sued for an allegedly dust contaminated furnace that his report indicated needed to be cleaned. And I was sued over something that is disclaimed in my standards of practice, and which was specifically disclaimed in my report, and by persons who were not even my clients. Is it any wonder that attorneys are almost universally despised? And what is even worse is that the innocent are dragged into lawsuits along with the guilty. Under the doctrine of “equitable indemnity,” everyone is included in the suit until they can be excluded by the court, a guarantee of easy money for a whole tribe of attorneys.

Equitable indemnity can be seen as reasonable and just, as it was when it was first applied. It arose out of a motorcycle case, which stipulated that consumers are entitled to rely on the reports of specialists. For example, if I paid to have a motorcycle serviced by a specialist and then sold it to you, along with the itemized bill for the service you would have the right to rely on that information even though you hadn’t actually paid for it or commissioned it. Fair enough? In that instance, yes. But to make that a regulatory law is insipid. And you can understand what that means to you and your inspection reports, and how easily you could become a victim of the law. What Howard argues is that the law has replaced humanity: “we have constructed a system of regulatory law that basically outlaws common sense,” he says (p.11). And he goes on to say that we have all but abandoned the application of the common law, which takes the circumstances into account, as well it should. He explains: “The accident caused by swerving to avoid the child is excusable; falling asleep at the wheel is not. The most important standard is what a reasonable person would have done” (p.23). Most of the court cases that I’ve become familiar with have nothing to do with common sense, and have not only been totally unreasonable but have made a mockery of justice. And I never went looking for them, and never invited anyone to send them to me. And when I find attorneys documenting such abuses, I know that the system has been corrupted by stupidity and greed, and that we are at the mercy of blue-collar terrorists. Nothing short of tort reform, or a general strike of inspectors nationwide, is likely to change this unhappy state of affairs. So, at this wonderful time of year, rejoice with your family and friends. And, as you begin the New Year, do everything you can to avoid litigation because, unfortunately, there is nothing that can prevent it, nothing. In the words of an ancient proverb: “First the feathers, then flight.”

For more articles go to